ECtHR – Asady and others v. Slovakia, Application no. 24917/15, 24 March 2020
| Country of applicant: | Afghanistan |
| Court name: | European Court of Human Rights – Third Section |
| Date of decision: | 24-03-2020 |
| Citation: | Asady and others v. Slovakia, Application no. 24917/15, 24 March 2020 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The standardised nature of the questions to the applicants and similarities in the responses recorded do not necessarily indicate a lack of individualised assessment. The applicants were not deprived of an opportunity to submit arguments against their expulsion and did not make any claim of persecution risks in their country of origin. No collective expulsion under Article 4 Protocol 4 has been established.
Similarly, no violation of Article 4 Protocol 4 in conjunction with Article 13 has been established, as the claim cannot be considered arguable.
Facts:
The applicants were apprehended by Slovak police forces aboard a vehicle following a police patrol. None of them had any documents, so they were all taken to a border police station for identification along with thirteen other persons who are not applicants in this case.
Following an identification procedure in the presence of an interpreter, the police produced several documents that were signed by the applicants and included statements of non-persecution in their country of origin as well as of a journey that was prompted by economic reasons. They had also answered negatively when they were asked whether they wanted to apply for asylum. In contrast, twelve of the thirteen people taken to the police station along with the applicants had asked for asylum and were subsequently transferred to a reception centre.
Following these procedures, the applicants were handed decisions ordering their administrative expulsion to Ukraine, including an entry ban to Slovakia. The decisions did not foresee voluntary departure and they did not allow for a suspensive effect of the remedy for reasons of public interest. The documents indicated an identical wording of the expulsion decisions, administrative contradictions regarding the way interviews were conducted, as well as standardised recording of the applicants’ answers. They were returned on the same day. While in Ukraine, four of the applicants appealed against the expulsion decisions but their appeals were dismissed.
The applicants lodged a complaint before the Court alleging a violation of Article 4 Protocol 4, on its own and in conjunction with Article 13.
Decision & reasoning:
Article 4 Protocol 4
The Court started by reiterating its case law on Article 4 Protocol 4, regarding the level of individuality required by this provision, the challenges that European states face in managing migration, and the respect for Convention obligations (paras. 57-59). In the present case, the Court noted that the existence of identical decisions does not per se suggest a violation of Article 4 Protocol 4, according to its case law, while the standardises nature could be attributed to the fact that the applicants did not submit any specific statements regarding any risks in Ukraine (para. 61). Moreover, by reference to its judgment in N.D. and N.T. the Court emphasised that Slovakia had allowed them to access its territory through a border procedure; the issue at stake is whether during that procedure they were given an opportunity to raise concerns on the consequences of their return to Ukraine (para. 62).
Regarding the alleged improper conduct of interviews, the Court considered that there was insufficient evidence to conclude that administrative errors in recording the interview times indicated a lack of individualised procedure. Moreover, as stated above, Article 4 Protocol 4 does not require an individual interview in every situation (para. 64). The Court considered that the similar answers of the applicants are reasonable, as they were travelling together as a group and their journeys might have been similar. Moreover, the fact that in each interview every applicant is found to possess different amounts of money further indicates an individualised procedure. The short duration of the interviews could further be attributed to the absence of any answers requiring a more thorough attention (para. 66).
Lastly, there is no reason to believe that the applicants’ statements were not properly translated and recorded, or that their asylum requests were ignored. The applicants did not provide any arguments refuting the recorded statements or alleging fear of persecution in their country of origin (paras. 67-68), while twelve people from the same group were transferred to a reception centre following their requests for asylum (para. 69). The Court found that Article 4 of Protocol 4 had not been violated.
Article 4 Protocol 4 in conjunction with Article 13
As the applicants’ expulsion was not collective under Article 4 Protocol 4 and the applicants were not effectively prevented from applying for asylum, meaning that there is no arguable claim for the purposes of Article 13 (paras. 74-75).
Outcome:
1. Decides, by a majority, to strike the application out of its list in so far as it concerns Mr Zabi Asady, Mr Farid Ahmad Ahmadi, Mr Ali Ahmadi, Mr Nasir Ahangarzada, Mr Ali Ahmad Ali Zada, Mr Salman Faqiri, Mr Sohrab Faqiri, Mr Mohamad Farid Ekhlas, Mr Edris Yusufi, Mr Bezhan Rahimi, Mr Miramza Sidiqi and Mr Rahim Rahimi;
2. Decides, unanimously, not to strike the application out of its list in so far as it concerns the other applicants;
3. Declares, unanimously, the complaint under Article 4 of Protocol No. 4 admissible;
4. Declares, by a majority, the remainder of the application inadmissible;
5. Holds, by four votes to three, that there has been no violation of Article 4 of Protocol No. 4.
Observations/comments:
Issues of admissibility
The case was stricken out for applicants no. 1, 2, 3, 9, 11, 13, 14, 15, 16, 17, 18 as there was insufficient evidence to establish the applicants whereabouts and their constant contact no subsequent contact with their legal representative had been proven.
Regarding applicants no. 5, 6, 7, 8, 10 and 12, the Court dismissed the government’s objection regarding the exhaustion of remedies because they had failed to appeal against the administrative decisions of expulsion. The Court noted that there is no reason to expect that they would have received a different outcome to the one decided for applicants no. 1, 2, 3 and 4, who managed to lodge appeals on time. Moreover, it emphasised the difficulties that the applicants faced in accessing a lawyer following their return to Ukraine, which rendered an appeal within the 15-day time limit impossible.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Other sources:
Human Rights Watch, Buffeted in the Borderland: The Treatment of Asylum Seekers and Migrants in Ukraine, December 2010